Whereas the Telecommunications Law 2009 solely regulated network interconnection and infrastructure sharing, the Telecommunications Law 2023 has, for the first time, introduced a legal framework governing wholesale telecommunications activities. This framework encompasses provisions on the purchase, sale, and resale of telecommunications traffic and services, thereby fostering a fair and competitive environment and promoting industry development.
1. Understanding wholesale activities in telecommunications
The Telecommunications Law 2023 has formally defined wholesale telecommunications activities as the practice whereby a telecommunications enterprise leases its telecommunications network or sells its telecommunications traffic and services to another telecommunications enterprise for the purpose of providing telecommunications services. This definition marks a significant milestone in clarifying the scope and nature of wholesale activities in the telecommunications sector.
The Telecommunications Law 2023 and Circular 08/2024/TT-BTTTT have established a comprehensive legal framework governing wholesale telecommunications activities, instituting fundamental principles and detailed regulations that provide a solid foundation for practical implementation.
A notable advantage of the new legal framework is its establishment of specific requirements regarding fairness and transparency in wholesale operations. In particular, provisions prohibiting discrimination between entities and requiring pricing based on objective factors contribute to creating an equitable business environment. The requirement for transparency in pricing, technical standards, and service quality information represents a significant advancement in protecting the interests of market participants.
However, this legal framework also presents several significant challenges. Firstly, compliance with requirements for information transparency and pricing structure may create administrative burdens for enterprises. Secondly, ensuring “fairness” and “reasonableness” in practice may prove difficult due to the subjective nature of evaluating these criteria.
2. Obligation to disclose standard wholesale telecommunications service agreement
Article 5 of Circular 08/2024/TT-BTTTT stipulates detailed provisions regarding the obligation to disclose the Standard Agreement for wholesale telecommunications services, applicable to telecommunications enterprises. Accordingly, telecommunications enterprises with significant market power are obligated to develop and disclose the Standard Agreement within 30 days from the date of executing the agreement with the wholesale purchaser. For enterprises without significant market power, the development of the Standard Agreement is voluntary, except in cases where an agreement cannot be reached with the wholesale purchaser.
The requirement for disclosure of the Standard Agreement establishes transparency and openness throughout the market. This is further reinforced by the establishment of a clear legal framework regarding deadlines and responsibilities of relevant parties. However, the absence of specific regulations on the form and method of disclosure may lead to inconsistencies in implementation across enterprises. Another noteworthy point is the lack of detailed guidance on the procedural requirements for modifications or adjustments to the Standard Agreement content after disclosure.
In general, while this regulation marks a significant step forward in standardizing wholesale telecommunications activities, supplementation and refinement of detailed provisions are necessary to ensure feasibility and effectiveness in implementation.
3. Contents of the Wholesale Service Agreement
Article 6 of Circular 08/2024/TT-BTTTT has established a legal framework regarding the contents of Wholesale Service Agreements in the telecommunications sector. This regulation sets forth basic requirements for the form and content of agreements to ensure transparency and protect the interests of participating parties.
a. Form and transparency requirements
The Circular requires that agreements must be made in writing, containing all essential contents regarding pricing, service quality, and service provision terms. A notable point is the requirement for transparency and clarity in presentation, particularly in using the correct service names according to the State-managed Telecommunications Service Market Directory.
b. Technical and operational elements
The agreement must include detailed provisions on technical specifications and operational requirements. This encompasses not only network configuration information but also published service quality standards. Of particular importance are the technical requirements that wholesale buyers must comply with to ensure the security of the wholesale seller’s network.
c. Commercial aspects and rights protection
Regarding commercial matters, the agreement must clearly stipulate terms on pricing, payment methods, and reconciliation procedures. Notable are the provisions on information security and data privacy, reflecting the growing trend of data protection in telecommunications. The agreement must also include clauses on contract termination, compensation for damages, and dispute resolution, creating a comprehensive legal framework for protecting the parties’ rights.
The Wholesale Service Agreement shall include at minimum the following contents:
a) Service provision requirements and principles;
b) Service provision processes and procedures;
c) Description of services to be provided, including technical specifications (including network configuration information when necessary for effective network access rights usage);
d) Service quality standards including at minimum the quality indicators that have been publicly announced;
e) Operational and technical requirements that wholesale purchasers must comply with to avoid damage to the wholesale seller’s network;
f) Telecommunications interconnection content as prescribed by the Ministry of Information and Communications (in case of network leasing);
g) Terms on pricing and procedures for reconciliation and payment of service usage fees;
h) Forms of payment for service usage;
i) Procedures for service changes (additions, reductions);
j) Solutions for infrastructure safety and information security;
k) Regulations on information confidentiality and privacy of data used during service provision and usage;
l) Other rights and obligations of wholesale purchaser/seller (if any);
m) Provisions on agreement termination rights, compensation for damages in case either enterprise fails to fulfill commitments in the Agreement;
n) Dispute resolution, compensation, and complaints;
o) Contact information.
The Telecommunications Law 2023 and Circular 08/2024/TT-BTTTT have established a legal framework governing wholesale telecommunications activities. While certain implementation challenges persist, such as administrative burden and the subjective nature of criteria assessment, this new legal framework has laid the foundation for the development of Vietnam’s telecommunications market, fostering a more equitable and transparent business environment.
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3/ Consumer information under the provisions of the law on consumer protection 2023
Disclaimers:
This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.
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